The district court handling the petition of Atiku Abubakar, presidential candidate of the People’s Democratic Party, PDP against the Chicago State University, CSU in the United States has granted all the requests of the politician. In a ruling on September 30,2023, Judge Nancy L. Maldonado agreed with the ruling of a lower court on the requests. It says in part, “The court concludes, as Judge Gilbert did, that the statutory requirements are met, and the discretionary factors support the application.” Abubakar had approached the US court asking that CSU be compelled to release academic records of President Bola Tinubu, while he was a student of the university. He told the court that he needed the documents to clear doubts about the claims by Tinubu that he attended the university, as deposed in his submission to the Independent National Electoral Commission, INEC. Tinubu had joined the suit, arguing against the release of the sought documents, even after CSU had expressed its readiness to release the records.
There ensued arguments in the court, as to the propriety of granting the prayers sought by Abubakar, a former Vice President of Nigeria. The court considered three major requirements to arrive at its decision. These include (1) The person or entity from whom the discovery is sought must reside or be found in the district of the court to which application is made; (2) the discovery must be “for use” in a proceeding before a foreign tribunal; and (3) the application must be submitted by a foreign or international tribunal or an “interested person.”
The first requirement was not disputed, as CSU is located within the jurisdiction of the court. However, the second to which counsel to Tinubu first objected was granted by Judge Gilbert who said the court was convinced by the argument of Mr. Abubakar that the document sought by him was “for use”, even in the proceedings of the Supreme Court to which he has appealed. The Judge said while counsel to Tinubu held that the document being sought created a “procedural bar”, they failed to present evidence that court of appeal was capable of preventing the Supreme Court from considering, ‘in its discretion’, new arguments and evidence under “exceptional circumstances”.
The court then affirmed that “There is a mechanism by which Mr. Abubakar could potentially inject the requested discovery into the foreign proceedings. Whether the Supreme Court of Nigeria will ultimately allow Mr. Abubakar to use the documents, or whether it will consider them in its decision, are not questions for the (US) court to resolve.” The court also said that it was not within its power, nor will it be limited by the thought of success or otherwise of Mr. Abubakar in the use of the document in Nigeria.
The court further overrules the objection by President Tinubu that it should not grant the prayers of Mr. Abubakar to seek the testimony about other CSU documents and records produced in other proceedings by other challengers, that not being relevant to Mr. Abubakar’s case in Nigeria. It said, “It is true, as President Tinubu points out and as Judge Gilbert himself recognized, that the “primary issue” that seems to motivate Mr. Abubakar’s application for discovery and arguments in this case is the question of whether the CSU diploma that was submitted to INEC, which bears the name of “Bola Ahmed Tinubu ” dated June 22, 1979, is genuine or was forged. But, as Judge Gilbert also recognized, Mr. Abubakar does not just question the authenticity of one diploma, but also questions whether President Tinubu actually attended and received any undergraduate degree from CSU at all, notwithstanding the fact that CSU has stated that President Tinubu did attend and receive a degree on June 22,1979. In order words, while Mr. Abubakar’s challenge to the election results is tied to the submission of an allegedly fraudulent diploma, he has raised other broader claims in the same proceedings before the court of appeal about President Tinubu’s identity and graduation, as well as the authenticity of and origin of other CSU documents that were obtained and produced as part of other Nigerian proceedings.”
So, the court held that the discovery on other documents is relevant to the former Vice President’s claims, and so considered “for use”, even if not “for successful use in” (meaning the merits of the documents for the appeal in) Nigerian court, “It is enough that they could be considered.” It then ruled that “The court therefore finds that the “for use in” statutory requirement under (section) 1782 is satisfied.” That, it said, is without prejudice to its admittance or success in the Supreme Court of Nigeria, nor should its opinion be read to mean that it had taken a position on the validity of the election in Nigeria and whatever the documents ” from CSU might show or not show”.
The court also ruled that Mr. Abubakar is an interested person, being a party to a petition in a Nigerian court where President Tinubu is also a party. However, the attempt to deny Mr. Abubakar the request for the document for use in Nigeria could not be stopped by President Tinubu because the court said that Tinubu did not show evidence that the court in Nigeria will not be receptive to any additional evidence. He also did not show any evidence that granting the application was capable of undermining or circumventing any Nigerian policy or proof gathering restriction (generally or with respect to educational records). Aside from the request of Mr. Abubakar outweighing the claim to privacy by President Tinubu, the court also held that the PDP candidate ‘met the “heavier burden” to justify the disclosure of President Tinubu’s educational records.’ This is particularly so because the court believes that Tinubu, being a popular figure, and having submitted the diploma under scrutiny to INEC, a public organization, could no longer plead invasion to his privacy. Judge Maldonado, therefore, ruled, “This Court will not obstruct the flow of discovery solely within the possession of a U.S. institution on a matter of such importance when the respondent (the CSU) stands ready and willing to provide it.”
Now, the initial concern was that the case in America was taking too long to conclude, and so that whatever was granted there might come late., and therefore be of no use in the proceedings underway in Nigeria. That fear was lifted when the US district court, taking cognisance of the October 5, deadline for submission of additional evidence in the Supreme Court of Nigeria, gave order that action on the release of the document be expedited by the CSU. Judge Maldonado ruled on September 30, 2023, that “Respondent CSU is directed to produce all relevant and non-privileged documents in response to Requests for Production Nos. 1 through 4 (as narrowed by Judge Gilbert and adopted here) in Mr. Abubakar’s subpoena, by 12:00 p.m. (noon) CDT, on Monday, October 2, 2023. The Rule 30(b)(6) deposition of CSU’s corporate designee must be completed by 5:00 p.m. CDT on Tuesday, October 3, 2023. Given the October 5, 2023, filing deadline before the Supreme Court of Nigeria, the Court will not extend or modify these deadlines.”
That means that by Tuesday October 3, 2023, Atiku Abubakar’s lawyers would take delivery of the records so requested by their client on the academic records of Tinubu at the CSU.
- See the text of the judgement by the US District Court or Download the PDF Copy here
Case: 1:23-cv-05099 Document #: 54 Filed: 09/30/23 Page 1 of 33 PageID #:2671
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
In re Application of ATIKU ABUBAKAR
For an Order Directing Discovery from CHICAGO STATE UNIVERSITY Pursuant to 28 U.S.C § 1782
No. 23 CV 05099
Honorable Nancy L. Maldonado
MEMORANDUM OPINION AND ORDER
Atiku Abubakar initiated this action pursuant to 28 U.S.C. § 1782, a federal statute that allows a federal district court to order a person or entity within the district to produce documents or testimony for use in a foreign legal proceeding. Mr. Abubakar is a former Vice President of Nigeria and was a candidate for president in Nigeria’s February 2023 presidential election. Mr. Abubakar seeks an order under 28 U.S.C. § 1782 directing Chicago State University (“CSU”), which is located in this district, to produce certain documents and testimony related to Bola Ahmed Tinubu, the declared winner of the February 2023 Nigerian presidential election. Mr. Abubakar has challenged the validity of President Tinubu’s election in Nigerian courts on a number of grounds, including a claim that President Tinubu submitted a forged diploma to the Nigerian Independent National Electoral Commission (“INEC”) stating that he graduated from CSU. Mr. Abubakar contends the fraudulent submission would have disqualified President Tinubu from participating in the election, and he therefore seeks records and testimony from CSU related to President Tinubu’s diploma, and his graduation from CSU, to support Mr. Abubakar’s challenge to the election results.
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Mr. Abubakar filed his application under 28 U.S.C. § 1782 on August 2, 2023, (Dkt. 1), and the Court referred the matter to Magistrate Judge Gilbert for resolution. (Dkt. 7.) President Tinubu filed a motion to intervene in the action, which Mr. Abubakar did not oppose, and which this Court granted. (Dk. 13.) After briefing and argument, Judge Gilbert issued a ruling on September 19, 2023, granting Mr. Abubakar’s application. In light of pending Nigerian court deadlines, Judge Gilbert ordered CSU to respond to Mr. Abubakar’s document requests within two days, and to produce a witness to sit for a deposition within four days. (Dkt. 40.)
28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72 provide that a party objecting to a magistrate judge’s ruling may seek review from a district judge within 14 days of service of the magistrate judge’s ruling. On September 21, 2023, the day CSU was ordered to respond to the subpoena, President Tinubu filed an emergency motion before the undersigned District Judge requesting that the Court review Judge Gilbert’s decision and stay the order requiring CSU to respond to the subpoenas until such time that the Court could complete its review. The Court held an emergency hearing that same day and granted the request for a stay, agreeing that delaying the production of documents and testimony was necessary to allow President Tinubu the opportunity to seek review of Judge Gilbert’s decision, as was his right under Rule 72. Given that the Nigerian court deadlines were fast approaching, the Court set an expedited briefing schedule on President Tinubu’s objections. The parties have now completed that briefing, and the Court has reviewed their submissions.
For the reasons stated in this Memorandum Opinion and Order, the Court overrules President Tinubu’s objections and adopts Judge Gilbert’s recommended decision in full.1 The
1Judge Gilbert’s order was not captioned as a report and recommendation, but as a final order. But as will be discussed further below, the Court finds that the ruling was dispositive, and therefore construes it as a report and recommendation.
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Court therefore grants Mr. Abubakar’s application under 28 U.S.C. § 1782. CSU is directed to respond to Mr. Abubakar’s subpoena in the time and manner provided for below. In reaching this conclusion, the Court emphasizes that it is expressing no view on the merits of Mr. Abubakar’s claims regarding President Tinubu’s graduation from CSU, or on the validity of the Nigerian election. Nor is the Court taking any position on what any of the documents or testimony from CSU may or may not ultimately show. These are all matters for the Nigerian courts to resolve under Nigerian law, and it is not appropriate for this U.S. Court to opine on such issues or attempt to predict how foreign courts might ultimately rule if and when they are presented with any evidence from CSU. The issue presented to this Court is much more limited: whether, under the applicable U.S. law and the federal rules of discovery, Mr. Abubakar is entitled to the production of documents and testimony that he seeks from CSU. The Court finds that he is. This decision is in line with the underlying purpose of 28 U.S.C. § 1782 to promote judicial assistance to foreign courts and comports with the liberal discovery standards under the Federal Rules of Civil Procedure, which encourage disclosure of potentially relevant information.
A. Statutory Background and Purpose of 28 U.S.C. § 1782
The Court begins with some brief background and context to the statutory provision that Mr. Abubakar seeks to invoke. Section 1782 authorizes a district court to order a person or entity located within the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). Congress enacted the current version of the statute in 1964, though its origins date back to an 1855 law which authorized U.S. federal courts to assist foreign courts by compelling witnesses in the U.S. to provide testimony for a foreign
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proceeding. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247, (2004) (citations omitted).
In 1964, pursuant to a recommendation by the Commission on International Rules of Judicial Procedure, Congress revised 28 U.S.C. § 1782 into its current form. Id. at 248. The 1964 revisions expanded the scope of relief available under § 1782 as part of an effort to improve judicial assistance between the United States and foreign countries. Id. In its revised form, § 1782 provides
for assistance in obtaining documentary and other tangible evidence in addition to witness testimony. Id. Congress also removed language that limited the statute to judicial proceedings “pending in any court in a foreign country,” with broader language to allow for discovery “for use in a proceeding in a foreign or international tribunal.” Id. at 248–49. Together, the changes reflected a general intent to expand the circumstances under which a district court could provide assistance to foreign tribunals to include proceedings before conventional courts, as well as other administrative or quasi-judicial proceedings. See id. at 249.
Some courts and commentators have expressed the view that another purpose underlying Congress’s expansion of § 1782 was to “to encourage foreign countries to enlarge discovery rights in their own legal systems.” See generally Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 594 (7th Cir. 2011) (collecting sources). The Federal Rules of Civil Procedure provide for liberal discovery of information to facilitate and encourage the full disclosure of any relevant information before a trial. See, e.g., Cima v. WellPoint Health Networks, Inc., No. 05-CV-4127-JPG, 2008 WL 746916, at *3 (S.D. Ill. Mar. 18, 2008) (collecting cases). The belief is that, because discovery in the U.S. federal court system is considered broader than that in most (if not all) foreign courts, expanding federal district courts’ ability to provide assistance to foreign litigants involved in foreign proceedings (under the liberal discovery rules) might lead to a reciprocal benefit to U.S.
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litigants in those countries by expanding the scope of discovery to be more in line with the U.S. system. See Heraeus Kulzer, 633 F.3d at 594.
In short, the animating purpose behind § 1782 is comity and cooperation with foreign proceedings. This does not mean that a court must automatically grant an application under § 1782—the requirements of the statute must be met. But it does mean that this Court should be mindful of supporting the underlying purpose of the statute to promote judicial assistance to foreign proceedings. The Court also adheres to the liberal discovery standards that apply in federal courts, which favor transparency and disclosure of relevant (or potentially relevant) information.
B. Factual Background to Application
Against this backdrop, the Court turns to the facts of the instant application under § 1782. Unless otherwise noted, the Court takes the background from the parties’ submissions to Judge Gilbert, as summarized in his Memorandum Opinion and Order. (Dkt. 40.) The Court has also considered any additional facts presented in the parties’ briefing on President Tinubu’s objections.
Atiku Abubakar was Vice President of Nigeria from 1999 to 2007 and ran for president in Nigeria’s presidential election in February 2023. After the election, the INEC declared that Bola Ahmed Tinubu had won, and he is now serving as the current president of Nigeria. In March 2023, Mr. Abubakar, along with the People’s Democratic Party, filed a petition challenging the results of the election with the Court of Appeal in the Presidential Election Petition Court in Nigeria
(“Court of Appeal”), which is the initial court of review for election disputes. Mr. Abubakar’s petition was one of several challenges filed by different parties challenging the election results. Mr. Abubakar contends that his petition with the Nigerian Court of Appeal includes, among other disputes, a claim that President Tinubu submitted a forged diploma to the INEC indicating that he had received an undergraduate bachelor’s degree from CSU. Mr. Abubakar asserts that, under
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Nigerian law, the submission of a fraudulent document to the INEC would have disqualified now President Tinubu from participating in the election, thus invalidating his victory. According to President Tinubu, Mr. Abubakar’s original petition to the Nigerian Election Court stretched some 200 pages and largely focused on issues with vote tabulation, but did not raise any claims that President Tinubu was disqualified due to the submission of fraudulent documents to the INEC. (Dkt. 44 at 2; Dkt. 5-2.)2Instead, President Tinubu asserts that Mr. Abubakar only raised the disqualification issue, and the claim of a fraudulent CSU diploma, in his reply submissions to the Court of Appeal after President Tinubu had filed a response. (Dkt. 44 at 3; Dkt 22-4.) Mr. Abubakar responds that he did generally challenge President Tinubu’s qualifications in his opening petition, but he admits that he did not raise any specific claims regarding President Tinubu’s education or graduation from CSU until his reply. (Dkt. 45 at 6–7.) On August 2, 2023, while Mr. Abubakar’s petition was still pending before the Nigerian Court of Appeal, he filed the instant application in this Court pursuant to 28 U.S.C. § 1782. (Dkt. 1.) Mr. Abubakar’s application seeks an order to obtain discovery from CSU for use in the ongoing Nigerian proceedings. Specifically, Mr. Abubakar seeks discovery related to the authenticity of the diploma President Tinubu submitted to the INEC, as well as other records and testimony from CSU that Mr. Abubakar says are related to that same challenge.
On September 6, 2023, while Mr. Abubakar’s application was pending before this Court, the Nigerian Court of Appeal issued a ruling rejecting Mr. Abubakar’s petition and finding in favor of President Tinubu. The ruling rejects Mr. Abubakar’s attempts to raise the disqualification issue, stating that Mr. Abubakar’s factual claims about allegedly forged documents, among other
2In citations to the docket, page numbers are taken from the CM/ECF headers.
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allegations of “non-qualification,” were improperly raised for the first time in his reply brief, and needed to have been contained in the original petition. (Dkt. 44 at 4; Dkt. 34 at 557–562.) On September 18, 2023, Mr. Abubakar filed a notice of appeal of the Court of Appeal decision with the Supreme Court of Nigeria. (Dkt. 44-1.) The notice of appeal covers a number of challenges to the Court of Appeal decision, including the specific finding that it was improper for Mr. Abubakar to attempt to raise new facts and arguments for the first time in his reply related to President Tinubu’s qualification for office.
C. Procedural History and Scope of the Requested Discovery
- Proceedings Before Magistrate Judge Gilbert
As noted above, Mr. Abubakar originally filed his application with this Court on August 2, 2023, seeking an order compelling the production of documents and testimony from CSU. (Dkt. 1.) The next day, President Tinubu filed a motion to intervene in this action, which Mr. Abubakar did not oppose, and which this Court granted. (Dkts. 10, 11.) The District Court referred the matter to Magistrate Judge Gilbert for resolution. (Dkt 6.)
The parties proceeded to brief the merits of the application before Judge Gilbert. Over the course of the proceedings, Mr. Abubakar narrowed the scope of the discovery he was requesting from CSU by revising his subpoenas. The revised subpoenas include four document requests, seeking true and correct copies of: (1) an example of a CSU diploma for a Bachelor of Science degree issued in 1979; (2) President Tinubu’s diploma issued in 1979; (3) any examples of a CSU diploma that “contains the same font, seal, signatures, and wording (other than the name of the recipient and the specific degree awarded)” as the copy of the diploma that was purportedly issued to President Tinubu on or about June 22, 1979; and (4) certain other CSU documents that were apparently certified and produced by Jamar Orr (an associate general counsel at CSU) in other
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Nigerian proceedings, as well as communications relating to these documents (the “Orr Documents”). (Dkt. 40 at 4; Dkt. 38.)
In addition to the document requests, Mr. Abubakar also seeks to depose CSU pursuant to Federal Rule of Civil Procedure Rule 30(b)(6).3 Mr. Abubakar seeks to explore five topics through deposition: (1) the authenticity of the documents produced by CSU in response to the application and how and where CSU located the documents; (2) CSU’s position on the authenticity of other CSU documents related to President Tinubu purportedly produced by CSU in another Nigerian proceeding (“Enahoro-Ebah v. Tinubu”); (3) the contents of an affidavit from CSU’s registrar Caleb Westberg (the “Westberg Affidavit”); (4) CSU’s position on the authenticity of a letter from Westberg (the “Westberg Letter”) on CSU letterhead regarding President Tinubu, including who requested the letter, who prepared the letter, and to whom it was sent; and (5) CSU’s position on the authenticity of the Orr Documents and other facts regarding why the documents were certified, if Mr. Orr was authorized to do so, who requested the documents, and to whom they were sent. (Dkt. 40 at 5; Dkt. 39.)
Judge Gilbert held a hearing on September 12, 2023, and heard arguments from the parties on the application. On September 19, 2023, after reviewing the parties’ briefing and Mr. Abubakar’s discovery requests, Judge Gilbert issued a ruling granting Mr. Abubakar’s application. (Dkt. 40 at 30–31.)
In a comprehensive opinion, Judge Gilbert found that the threshold statutory requirements of 28 U.S.C. § 1782 were met, and the application of the discretionary factors used to analyze 28 U.S.C. § 1782 supported, on balance, granting Mr. Abubakar’s application for discovery. In short,
3 Rule 30(b)(6) generally allows a party to submit a deposition notice or subpoena to a public or private organization with a list of topics to be covered, and in response, the organization must designate a witness with knowledge of those topics to testify. Fed. R. Civ. P. 30(b)(6).
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Judge Gilbert found that the discovery requests were reasonably tailored to obtain information for possible use in support of Mr. Abubakar’s appeal to the Nigerian Supreme Court, and that Mr. Abubakar’s interest in obtaining the discovery outweighed President Tinubu’s privacy rights in the materials, because he had put his diploma at issue by submitting it to the INEC. (Id. at 26.)
Judge Gilbert ordered that the application be granted, though he did limit the scope of one of Mr. Abubakar’s discovery requests. Specially, Judge Gilbert narrowed Mr. Abubakar’s fourth document request above, excluding the request for any and all communications concerning the Orr Documents because it would call for time-consuming and burdensome electronic discovery that was particularly infeasible in light of the looming court deadlines. (Id. at 28–29.) Judge Gilbert found that the other document requests, and the five topics requested by Mr. Abubakar for the Rule 30(b)(6) deposition, were appropriately tailored to obtain relevant information (Id.) In light of pending deadlines before the Nigerian Supreme Court, Judge Gilbert ordered CSU to respond to the request for documents in two days, by September 21, 2023, and to produce a witness within two days after the production of documents. (Id. at 30–31.)
- President Tinubu’s Emergency Request for a Stay and Review of Judge Gilbert’s Ruling by the District Court.
On September 21, 2023, the day that CSU was due to respond to Mr. Abubakar’s document subpoena, President Tinubu filed an emergency motion before the undersigned, asking that the Court stay enforcement of Judge Gilbert’s ruling pending review. (Dkt. 41.) In the motion, President Tinubu maintained that Judge Gilbert lacked the authority to grant the application outright and order immediate compliance. President Tinubu noted that magistrate judges are generally not empowered to issue final “dispositive rulings,” or, rulings that completely resolve a case. (Id. at 2–3.) Instead, when a magistrate judge issues a ruling on a dispositive issue, it is not final, but is instead considered a “report and recommendation” to the District Court, to be reviewed
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and either adopted, modified, or overturned. See Fed. R. Civ. P. 72. Because Judge Gilbert’s ruling effectively granted complete and final relief to Mr. Abubakar, President Tinubu maintained it was not a final order, but merely a report and recommendation that could not go into effect until he had an opportunity to seek review from the district court.
The Court held an emergency hearing the same day on September 21. (Dkt. 43.) The Court heard argument from counsel for Mr. Abubakar, and counsel for President Tinubu on the nature of Judge Gilbert’s ruling, and what procedure the Court should follow in light of the time-sensitive nature of the request for discovery and pending Nigerian Supreme Court deadlines. Counsel for CSU indicated that it was ready to comply with Judge Gilbert’s order, and it took no position on whether the order should stand or what standard of review should apply.
The Court ultimately concluded that a stay of enforcement was appropriate because, regardless of whether Judge Gilbert had the authority to issue his order outright, or whether it should be considered merely a recommendation, President Tinubu had the right under the federal rules to file an objection with the district judge. Indeed, Federal Rule of Civil Procedure 72 generally allows a party up to 14 days to file an objection to a magistrate judge’s ruling, regardless of whether it is dispositive. Fed. R. Civ. P. 72(a), (b)(2). To force the production of documents before President Tinubu was given a chance to object, as is his right under Rule 72, would have mooted his objection, because at that point the documents and testimony would have already been produced. The Court therefore determined that it was appropriate to stay Judge Gilbert’s ruling to allow the parties time to brief objections to Judge Gilbert’s order and the appropriate standard the Court should apply in reviewing Judge Gilbert’s decision.
Counsel for Mr. Abubakar indicated his understanding that Mr. Abubakar has a final deadline of October 5, 2023, to attempt to present the requested evidence to the Supreme Court of
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Nigeria, and therefore the Court ordered an expedited briefing schedule, far shorter than the 14 days generally allotted under the rules. The Court required President Tinubu to file any objections to Judge Gilbert’s order by September 25, 2023, at 9:00 a.m., Mr. Abubakar to file his response to those objections on September 27, and President Tinubu to file any reply on September 28. The parties timely submitted their filings. (Dkts. 44, 45, 50.) The Court has reviewed the filings, Judge Gilbert’s ruling, and the record, and the issue is ripe for decision.
A. The Standard of Review of the Magistrate Judge’s Decision
The Court begins its analysis with the threshold question of the appropriate standard of review the Court should apply to Judge Gilbert’s decision. 28 U.S.C. § 636 describes the various powers and authority afforded to federal magistrate judges and, together with Federal Rule of Civil Procedure 72, establishes the types of motions or issues that a district court judge can refer to a magistrate judge for resolution. Importantly, § 636 and Rule 72 create a distinction between “non
dispositive” pretrial matters that may be referred to a magistrate judge for a decision and matters that are “dispositive of a claim or defense,” which may only be referred for a “recommended decision” to the district judge, unless the parties consent to the magistrate judge’s authority. See Fed. R. Civ. P. 72(a), (b); see also 28 U.S.C. § 636(b)(1).
This distinction is important, because when a magistrate judge rules on a non-dispositive pretrial matter, such as a pre-trial discovery dispute, a district judge may only reject that ruling if it is “clearly erroneous or is contrary to law,” an extremely deferential standard. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); see also Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006) (“Clear error is an extremely deferential standard of review, and will only be found to exist where the ‘reviewing court on the entire evidence is left with the definite and firm conviction that a
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mistake has been committed.’”). But when a magistrate judge issues a report and recommendation to the district judge on a dispositive matter, a district judge reviews de novo any portions of the recommendation to which a party has objected. 28 U.S.C. 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). In short, whether the magistrate judge’s decision is considered dispositive or not
generally determines what level of review the district judge applies.
President Tinubu argues that Judge Gilbert’s decision was dispositive, and the Court’s review must therefore be de novo because Judge Gilbert’s grant of Mr. Abubakar’s application under 28 U.S.C. § 1782 effectively ends the controversy between the parties. Mr. Abubakar argues, on the other hand, that Judge Gilbert’s ruling was a non-dispositive ruling on a discovery dispute and is therefore only subject to the more deferential clear error standard.
The Seventh Circuit Court of Appeals has not addressed whether orders under 28 U.S.C. § 1782 are dispositive. President Tinubu points the Court to a recent decision from the Ninth Circuit Court of Appeals directly addressing the issue. See CPC Pat. Techs. Pty Ltd. v. Apple, Inc., 34 F.4th 801, 807 (9th Cir. 2022). In that case, the Ninth Circuit concluded that a magistrate judge’s order denying an application under 28 U.S.C. § 1782 was dispositive, and therefore subject to de novo review by the district court, because the order “denied the only relief sought by [the applicant] in this federal case: court-ordered discovery.” Id. The Ninth Circuit acknowledged that pre-trial discovery disputes regarding document requests or witness testimony are routinely resolved by magistrate judges. Id. at 808. But the court reasoned that applications under § 1782 are distinguishable from those other types of pre-trial discovery disputes. Typically, when a magistrate judge rules on a discovery dispute, the discovery is part of an ongoing civil case in the same federal district court (or in the case of Rule 45 subpoena enforcement, perhaps an ongoing case in another district court). But in a § 1782 application, the case is a “freestanding subpoena request” that is
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filed on its own without reference to any other federal lawsuit. Id. at 808 (citations omitted). A ruling on the § 1782 application either grants or denies the “ultimate relief” sought, and fully disposes of the federal case. Id. The Ninth Circuit therefore reasoned that the order is “final” in that it fully resolves the case presented to the federal court and is necessarily a “dispositive matter” for which a magistrate judge may only issue a recommendation to the district court. Id.4
Mr. Abubakar contends that the Ninth Circuit decision is an “outlier,” and runs counter to the view of the majority of other circuit courts and the actual practices by district courts across the country, including this District Court. (Dkt. 44 at 8–9.) (collecting cases). For example, the Eleventh Circuit has expressly stated its view, though in an unpublished opinion, that “§ 1782 motions are non-dispositive matters” and rulings on such motions are only subject to clear error review. Rothe v. Aballi, No. 20-12543, 2021 WL 4429814, at *2 (11th Cir. Sept. 27, 2021). Mr. Abubakar argues that the determining factor is whether the magistrate judge’s decision resolves a party’s claims, and that Judge Gilbert’s order is not dispositive because it merely relates to discovery in support of his claims, which have not been resolved but are still before the Supreme Court of Nigeria. (Dkt. 44 at 10.)
Mr. Abubakar is correct that pre-trial discovery matters are routinely and ably handled by magistrate judges, and further that many courts, including within this District, view § 1782
4 The Third Circuit Court of Appeals, in an unpublished opinion, appears to have reached the same conclusion as the Ninth Circuit, in a case that involved the mirror request to the one here: a party involved in a U.S. case that issued “letters of request” for discovery from foreign-based companies. See Arcelik A.S. v. E.I. DuPont de Nemours & Co., 856 F. App’x 392, 396 (3d Cir. 2021). The court distinguished the letters of request from a § 1782 case, noting that in the latter type of case “the only role of the federal judiciary in the matter is to resolve the discovery question. Before a federal court receives the § 1782 assistance request . . . there is no case in federal court, no docket, no case number. And once the court rules, that is the end of the involvement of the federal court system.” Id. The Third Circuit thus found it was proper for the district court to utilize clear error review for the magistrate judge’s decision on the letters of request, because the underlying federal case continued in district court. Id. This point also distinguishes § 1782 cases from actions to enforce subpoenas for discovery under Rule 45 that are filed in a different district court than the underlying case for which discovery is sought. Once the court presented with the Rule 45 subpoena issue resolves the dispute, that may end the case in that district court, but there will still be a case pending in the federal judiciary, unlike in § 1782 cases where resolution of the application terminates the federal court system’s involvement.
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applications as non-dispositive discovery matters that can be resolved by magistrate judges. But in the absence of binding Seventh Circuit or U.S. Supreme Court authority, this Court looks to non-binding authority and ultimately finds the reasoning of the Ninth Circuit persuasive. While Mr. Abubakar’s § 1782 application ostensibly involves a discovery dispute, it is distinct from other discovery disputes handled by magistrate judges because there is no underlying civil litigation pending in the federal judiciary, either in this district or any other district court. Thus, the resolution of the application resolves the parties’ dispute in the federal court system. In other words, Judge Gilbert’s ruling granting the application completely resolves Mr. Abubakar’s case in federal court. It is thus properly considered dispositive, and therefore the Court must construe it not as a final ruling, but as a “report and recommendation” subject to de novo review for any objected-to portions.
Of course, as will be seen below, even under de novo review, the Court ultimately reaches the same conclusion as Judge Gilbert and finds that the application should be granted. And further, as noted above, the Court only reviews de novo those portions of Judge Gilbert’s opinion to which a party has objected. Fed. R. Civ. P. 72(b)(3). For the portions to which no party has objected, the opinion is reviewed only for clear error.
B. The Merits of Mr. Abubakar’s Application under 28 U.S.C. § 1782 The Court turns next to the merits of Mr. Abubakar’s application. Determining whether to grant an application under § 1782 requires a two-part analysis. Intel, 542 U.S. at 264. First, an applicant must satisfy three threshold statutory requirements set forth in 28 U.S.C. § 1782(a). If the district court determines an applicant has satisfied the threshold requirements and it has the
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authority to grant the application, the district court then must consider four discretionary factors to determine whether and to what extent the § 1782 application is appropriate. Intel, 542 U.S. at 264. The Court will address these issues, and any objections to Judge Gilbert’s findings, below. The Court will take care to note when the Court is engaging in clear error review, as opposed to de novo review. Ultimately, the Court concludes, as Judge Gilbert did, that the statutory
requirements are met and the discretionary factors support granting the application. 1. The Threshold Statutory Requirements of 28 U.S.C. § 1782 Are Satisfied. 28 U.S.C. § 1782(a) requires applicants to meet three threshold requirements: (1) the person or entity from whom the discovery is sought must reside or be found in the district of the court to which the application is made; (2) the discovery must be “for use” in a proceeding before a foreign tribunal; and (3) the application must be submitted by a foreign or international tribunal or an “interested person.” 28 U.S.C. § 1782.
There is no dispute that CSU, the respondent from whom Mr. Abubakar seeks discovery, is located within this district, satisfying the first requirement. Judge Gilbert found that both the second and third requirements were also met. President Tinubu raises an objection to Judge Gilbert’s finding only with respect to the second issue: whether the requested discovery is “for use” in a foreign proceeding. The Court therefore reviews de novo whether the second requirement is met, and reviews Judge Gilbert’s ruling as to the third requirement, whether Mr. Abubakar is an “interested person,” under the clearly erroneous standard.
a. The Discovery Sought Is “For Use” in a Foreign Proceeding.
To obtain discovery under 28 U.S.C. § 1782(a), an applicant must establish that the discovery sought is “for use in” a proceeding before a foreign tribunal. While the Seventh Circuit has not taken an affirmative view of what qualifies as “for use,” courts in this district have held
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that the “for use in” requirement “mirrors the requirements in Federal Rule of Civil Procedure 26(b)(1) and means discovery that is relevant to the claim or defense of any party, or for good cause, any matter relevant to the subject matter involved in the foreign action.” See Lumenis Ltd. v. Alma Lasers Ltd., No. 07 C 3622, 2013 WL 1707571, at *2 (N.D. Ill. Apr. 19, 2013) (citing Fleischmann v. McDonald’s Corp., 466 F. Supp. 2d 1020, 1029 (N.D. Ill. 2006)). Furthermore, the foreign proceeding does not need to be “pending” or even “imminent,” but merely needs to be “within reasonable contemplation.” In re Sabag, No. 119MC00084JPHTAB, 2021 WL 1634781, at *2 (S.D. Ind. Apr. 26, 2021) (citing Intel, 542 U.S. at 249.) And, critically, “courts have found the term ‘for use in’ does not require the material request to be discoverable or admissible in the foreign jurisdiction.” Lumenis Ltd., 2013 WL 1707571 at *2 (collecting cases); see also Brandi Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 82 (2d Cir. 2012) (citing cases from the First, Third, and Ninth Circuit for the proposition that a district court should not consider the discoverability or admissibility of evidence in the foreign proceeding).Follow Us on Social Media